This one is for the lawyers. Child protection and the appropriate legal framework to facilitate ‘best practice’ is a subject which has been vigorously contested across Anglophone societies over the last forty years. These debates reflect differing disciplinary perspectives and differing ideological influences such as the tension between the discourse of individual children’s rights on the one hand and claims to collective cultural autonomy for whānau Māori on the other. Much of this friction is generated by, and reflected in, the economic and political changes that have developed since the 1970s, when the so-called ‘Welfare State consensus’ started to unravel. Parton (2014) argues that changes to child protection practice over time are best understood as responses to changing (and contested) constructions of the preferred relationship between the state, the family and children; and more specifically the children of the poor.
Parton points out that legal and practice change often has more to do with political imperatives than the actual problem of child abuse. There are several threads to this argument and several important implications. He suggests that since Henry Kempe identified the ‘battered child syndrome’ in 1962, the problem has been framed as one of parental pathology, requiring forensic investigation and either treatment or more invasive protective intervention. There is historical tension within this construction of course – between proponents of family support to satisfy ‘need’ and authoritative responses to identified ‘risk’. However, Parton also argues that this construction itself is problematic – that child protection systems have conceptualised child maltreatment as a problem connected with specific sick or dangerous individuals and families. Obviously, child abuse occurs in families and the state needs to respond appropriately – however this orientation disguises the fact that child maltreatment is a social problem rather than an issue solely related to individual morality. Like all our social problems, child maltreatment is not simply located in the behaviour of mad, bad or sad individuals: causation is vested in social and economic structures.
A very small proportion of child maltreatment is ever reported. When it is, the assistance or intervention provided is variable. Research here and overseas tells us that a significant majority of the children who have contact with the child protection system are from deprived neighbourhoods. Issues of poor housing, health, education, income and social support all impact upon the capacity of parents. Economic inequality, insecurity and associated family stressors are also reflected in substance abuse and family violence. I am not suggesting that the poor have a mortgage on child maltreatment. This is far from the case but ask any lawyer for child where their clients come from. Add to this the issue of reporting and surveillance biases (and the wider realities of institutional racism and colonial dispossession for whānau Māori) and you get the problems of class and ethnicity-based disproportionality that are currently disturbing many of those working in this field. None of this is rocket science and it clearly supports Parton’s argument that a broader understanding of causation and remedy needs to be reached.
The ideological friction alluded to above is reflected in the current principles of the OT Act, 1989. The so-called 2015 Expert Advisory Panel (EAP) operated beneath a social investment view of child protection. This narrow framework was concerned with the reproduction of social costs by a particularly ‘irresponsible’ section of the population. Accordingly, it was argued that the state needed to take a firmer line to protect children from expensive long-term outcomes; to break cycles of family centred trauma with the provision of safe, stable and loving homes.
Given the socio-economic inequalities canvassed above and the lack of effective services for high needs whānau, it has saddened, but not surprised, many commentators that this policy shift has resulted in more children (particularly Māori infants) in state care. We have also, of course, seen ongoing critique of, and resistance to, the naïve child rescue orientation associated with the EAP formula, particularly when the reality of these foreseeable outcomes began to strike home. We now have a conflicted piece of legislation that, among other things, gives specific weight to the importance of whakapapa, whanaungatanga and the Treaty of Waitangi. We have also seen a concerted backlash from Māori and what may be a far-reaching process of inquiry, leading, in time, to further reform.
In terms of the Family Court system, Oranga Tamariki have developed something of a convention in relation to applications for interim custody orders when situations are perceived to be high risk. As a result of the recent internal review OT have undertaken to tighten this up, but the players in the legal system must also do their bit to prevent the abuse of statutory power. In some European jurisdictions the Courts take a much more authoritative role in the oversight of statutory child and family interventions. One way in which lawyers and Judges could more effectively exercise their constitutional responsibility to monitor the exercise of state power in this context would be through a stricter interrogation of ex-parte and on-notice affidavit evidence. Have legal thresholds been clearly reached? Is the risk identified chronic rather than ‘really’ acute? What is absent from the narrative? Have whanau-centred processes and alternatives short of interim state care or custody proceedings been exhausted?
This orientation involves a shared responsibility for managing the balance of risk and empowerment which the OT Act has always required and, dare I say it, some real engagement with the consequences of the underlying social-cultural-economic inequalities embedded within our society. This uncomfortable underpinning reality is often obscured by the way in which the child protection project has developed historically in Aotearoa New Zealand. It is a time for a re-think. There are other ways.
Parton, Nigel (2014). The Politics of Child Protection: Contemporary Developments and Future Directions. Basingstoke: Palgrave Macmillan.